The Hindu : Front Page : Don’t cross limits, apex court asks judges

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Tuesday, Dec 11, 2007
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Don’t cross limits, apex court asks judges

J. Venkatesan

Caution against encroaching on legislature or executive

Stick to constitutional scheme of separation of powers
Judges must not behave like emperors

New Delhi: Calling for judicial restraint, the Supreme Court has asked courts not to take over the functions of the legislature or the executive, saying there is a broad separation of powers under the Constitution and each organ of the state must have respect for others and should not encroach on their domain.

Blaming the Supreme Court itself for passing certain orders that resulted in upsetting the balance, a Bench consisting of Justices A.K. Mathur and Markandey Katju said in a judgment: “Jagadambika Pal’s case of 1998, involving the U.P. Legislative Assembly, and the Jharkhand Assembly case of 2005 are two glaring examples of deviation from the clearly provided constitutional scheme of separation of powers.”

The Bench said: “The interim orders of this court [on the conduct of floor test and motion of confidence], as is widely accepted, upset the delicate constitutional balance among the judiciary, the legislature and the executive, and were described by J.S. Verma, former Chief Justice of India, as judicial aberrations which he hoped the Supreme Court will soon correct.”

Repeated violations

The Bench said: “We are compelled to make these observations because we are repeatedly coming across cases where judges are unjustifiably trying to perform executive or legislative functions. This is clearly unconstitutional. In the name of judicial activism, judges cannot cross their limits and try to take over functions which belong to another organ of the state.”

The Bench said: “Judges must know their limits and must not try to run the government. They must have modesty and humility, and not behave like emperors.”

Montesquieu warning

Quoting from the book ‘The Spirit of Laws’ by Montesquieu on the consequences of not maintaining separation of powers among the three organs, the Bench said the French political philosopher’s “warning is particularly apt and timely for the Indian judiciary today, since very often it is rightly criticised for ‘overreach’ and encroachment on the domain of the other two organs.”

Unfortunately, “some courts are still violating the high constitutional principle of separation of powers laid down by Montesquieu.”

“Beware adventurism”

Judicial activism must not become judicial adventurism, the Bench warned the courts. Adjudication must be done within the system of historically validated restraints and conscious minimisation of judges’ preferences.

“The courts must not embarrass administrative authorities and must realise that administrative authorities have expertise in the field of administration while the court does not.”

The Bench said: “The justification often given for judicial encroachment on the domain of the executive or the legislature is that the other two organs are not doing their jobs properly. Even assuming this is so, the same allegations can be made against the judiciary too because there are cases pending in courts for half-a-century.”

Exclusive domain

The Bench said: “For instance, the orders passed by the Delhi High Court in recent times dealt with subjects ranging from age and other criteria for nursery admissions, unauthorised schools, criteria for free seats in schools, supply of drinking water in schools, number of free beds in hospitals, the kind of air Delhiites breathe, begging in public, use of subways, etc.”

These matters pertained “exclusively to the executive or legislative domain. If there is a law, judges can certainly enforce it, but judges cannot create a law and seek to enforce it. For instance, the Delhi High Court directed that there can be no interview of children for admissions to nursery schools. There is no statute or statutory rule which prohibits such interviews. Hence the High court has by a judicial order first created a law [which is wholly beyond its jurisdiction] and then sought to enforce it. This is clearly illegal for, judges cannot legislate.”

If the legislature or the executive was not functioning properly, it was for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who would fulfil their expectations or by other lawful methods, e.g peaceful demonstrations.

“The remedy is not in the judiciary taking over the legislative or executive functions, because that will not only violate the delicate balance of power enshrined in the Constitution but also [because] the judiciary has neither the expertise nor the resources to perform these functions.”

The Bench said: “Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the state. It accomplishes this in two ways. First, judicial restraint not only recognises the equality of the other two branches with the judiciary, it also fosters that equality by minimising inter-branch interference by the judiciary.

“Second, judicial restraint tends to protect the independence of the judiciary. When courts encroach on the legislative or administrative fields almost inevitably voters, legislators, and other elected officials will conclude that the activities of judges should be closely monitored. If judges act like legislators or administrators, it follows that judges should be elected like legislators or selected and trained like administrators.”

Touchstone

By way of caution, the Bench said: “This would be counterproductive. The touchstone of an independent judiciary has been its removal from the political or administrative process. Even if this removal has sometimes been less than complete, it is an ideal worthy of support and one that has had valuable effects. The constitutional trade-off for independence is that judges must restrain themselves from the areas reserved to the other separate branches.”

Appeal against HC order allowed

The Bench was allowing an appeal against a Punjab and Haryana High Court order, which directed creation of new posts in a Haryana golf club.

In passing the orders the courts below exceeded their jurisdiction, the Bench said.

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